On July 15, the U.S. District Court for the Eastern District of Tennessee entered a preliminary injunction barring the Equal Employment Opportunity Commission (EEOC) and the Department of Education (ED) from enforcing guidance documents issued to interpret Title VII of the Civil Rights Act of 1964 (Title VII) and Title IX of the Education Amendments Act of 1972 (Title IX) to prohibit discrimination based on sexual orientation and gender identity.
The injunction means that in the 20 states who are plaintiffs in the action—Alabama, Alaska, Arizona, Arkansas, Georgia, Idaho, Indiana, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee and West Virginia—the EEOC and ED guidance explicitly protecting the rights of LGBTQ employees and students may not be enforced by these agencies while the lawsuit proceeds.
In June 2020, the Supreme Court issued its opinion in Bostock v. Clayton County, holding that under Title VII, prohibited “sex” discrimination includes prohibiting employers from discriminating against employees because of an individual’s sexual orientation or gender identity. The Court reached its conclusion by interpreting the Title VII’s statutory language, particularly the phrase “based on sex.” The Court in Bostock specifically noted that it was only addressing the question of whether employees could be fired under Title VII for their LGBTQ status and was not addressing issues such as “bathrooms, locker rooms . . . or anything else of the kind.”
In January 2021, President Biden issued Executive Order No. 13988, an “Executive Order on Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation” (Executive Order). The Executive Order, citing Bostock, directed federal agencies to interpret federal laws that “prohibit sex discrimination . . . [to] prohibit discrimination on the basis of gender identity or sexual orientation.”
In June 2021, in response to the Executive Order, ED issued several guidance documents relating to Title IX, including an explanatory memorandum published in the Federal Register, a Dear Colleague Letter and an accompanying Fact Sheet. Also in June 2021, the EEOC issued a Technical Assistance Document relating to Title VII. The ED guidance and EEOC Technical Assistance Document all stated that under Bostock, discrimination based on sex under Title VII and Title IX includes discrimination based on sexual preference and gender identity and provided guidance for employers and educational institutions noting, among other things, that ED and EEOC would enforce Title VII and Title IX to require transgender persons to be allowed to use facilities (bathrooms, locker rooms, etc.) consistent with their gender identity.
In August 2021, the state of Tennessee, joined by 19 other states, filed suit against ED, the EEOC and the Department of Justice, alleging that the ED Guidance documents and EEOC Technical Assistance Document (together Agency Guidance) were unlawful. In particular, Tennessee and its sister states alleged that the Agency Guidance was procedurally and substantively unsound under the Administrative Procedure Act (APA) and violated the Tenth Amendment. The state plaintiffs shortly after that sought a preliminary injunction. The United States opposed the injunction and moved to dismiss the complaint on the grounds of standing and ripeness, among other claims.
The court combined its opinion on the motion to dismiss with its opinion on the preliminary injunction finding that the arguments on the two motions were essentially the same, and denied the motion to dismiss and granted the motion for preliminary injunction.
In denying the motion to dismiss, the court found that the plaintiffs had established standing to sue, explaining that the Agency Guidance injured the states because those documents interfered with the states’ “sovereign authority to enforce state laws.” The court noted that ten of the state plaintiffs have laws that arguably conflict with the Agency Guidance, including, for example, a Tennessee law that requires public middle and high school students to use their assigned sex at birth to participate in interscholastic athletic activities. In finding standing, the court reasoned that states could not regulate according to their state laws while simultaneously complying with the Agency Guidance. Furthermore, the states are pressured to change their state laws or risk of losing federal funding.
The court also found the dispute to be ripe for adjudication, finding that the question before the court was fit for judicial decision because it raised purely legal questions of whether the Agency Guidance was procedurally sound under the APA and substantively sound under the Bostock decision. The court held that the states did not have to await enforcement of the Agency Guidance before bringing suit because, again, the state plaintiffs with laws in conflict with the Agency Guidance were faced with an intolerable choice of either changing their laws or risking the loss of federal funding due to regulations that these states believe to be unlawful.
Rejecting the defendants’ arguments that the Bostock decision compelled the Agency Guidance, the court noted that the Supreme Court in Bostock carefully limited its decision to only Title VII (not other federal statutes like Title IX) and only to the issue of termination of employment (not other issues like use of bathrooms, locker rooms and preferred pronouns). In contrast, the court explained, the Agency Guidance expanded the reach of Bostock.
Concerning the state plaintiffs’ motion for preliminary injunction – the first factor of which is the likelihood of success on the merits – the court focused only on the plaintiffs’ procedural argument under the APA and found a high likelihood of success. The court found that the Agency Guidance constitutes final legislative rules that require notice and comment rulemaking procedures under the APA—procedures that were not followed with regard to the Agency Guidance. The court then found the states suffered an irreparable injury when the Agency Guidance was issued, given the apparent conflict between the Agency Guidance and certain plaintiff state’s laws, thereby hampering the states, as previously mentioned. The court finally found that the public interest lies in the proper application of the law and thus in favor of an injunction.
The court refused the plaintiffs’ request to impose a nationwide injunction, finding that relief limited to the 20 plaintiff states was sufficient to vindicate their interests and noted there was no indication whether states not before the court also wished to have the Agency Guidance enjoined.
What Does This Mean?
The United States could appeal this ruling but has not filed a notice of appeal as of the date of this writing.
Absent an appeal, the preliminary injunction will remain in place while the district court decides the case on the merits. Assuming any discovery is required, the parties will engage in discovery and then presumably file motions for summary judgment that will include the “substantive” legal questions that the court’s preliminary injunction decision did not decide. While the injunction is in effect, the Agency Guidance cannot be enforced by the EEOC or ED in the 20 plaintiff states, and those states may retain any contrary state laws without fear of losing federal funding.
The injunction, however, does not preclude a private plaintiff from arguing that a state law requiring treatment based on sex that is inconsistent with the Agency Guidance violates an employer’s obligations under Title VII or an educational institution’s obligations under Title IX. That is to say, for example, an educational institution complying with one of the state plaintiff’s laws concerning a transgender student could be sued by that student for violating Title IX. If a court held that the institution’s action, though consistent with state law, violated Title IX, the institution would be liable under Title IX irrespective of this injunction. The same analysis would apply to employers under Title VII.
Even absent an appeal by the United States, we can be sure of continuing legal developments in this space. The new proposed regulations on Title IX, recently published in the Federal Register, directly address discrimination based on sexual orientation and sexual identity.
The new proposed section 34 C.F.R. §106.11 explicitly states that “[d]iscrimination on the basis of sex includes discrimination on the basis of . . . sexual orientation, and gender identity.” In addition, in amended 34 C.F.R. §106.31(a)(2) ED, proposes that in the limited circumstances where Title IX allows different treatment or separation based on sex, “[a]dopting a policy or engaging in a practice that prevents a person from participating in an education program or activity consistent with the person’s gender identity” is prohibited by Title IX.
By engaging in notice and comment rulemaking on this subject, ED has already begun remedying the procedural error identified by the district court. ED has further indicated that it intends to engage in a separate notice-and-comment rulemaking on the issue of athletics, which is expected to include issues involving transgender athletes. These provisions of the proposed regulations will almost certainly receive critical comments from the same states that are plaintiffs in the instant suit. Assuming ED does not change them, one can reasonably expect that these states will bring suit to challenge these portions of the regulations as well.
Employers and educational institutions in the states where the injunction is in place should be aware that the Agency Guidance is not in force in their states, and any action or policy taken with regard to LGBTQ employees/students may be subject to state law that conflicts with what employees and students on their campuses believe applies under Title VII or Title IX.
All employers and educational institutions should approach these issues with care. This can be expected to be a continuing area of disputed law.
Please feel free to call the authors with any questions.